Jared Lee Loughner is charged with the attempted murder of Congress member Gabrielle Giffords. Six people were killed and 13 were injured during a political rally in Tucson, Arizona on January 8, 2011.

A district court judge found him incompetent to stand trial. This does not mean that he is insane or not guilty by reason of insanity. Rather it means that he cannot help his lawyer or that he does not understand the legal process sufficiently to make decisions regarding his defense.

After the district court’s decision the Bureau of Prisons housed him at the Medical Center for Federal Prisoners in Springfield, Missouri. The purpose of sending him to the Medical Center was to make him competent to stand trial. Doctors at the Medical Center ordered that he be given psychotropic drugs. He refused to take them and the Medical Center attempted to force them on him. His lawyers moved for a preliminary injunction enjoining the Medical Center from involuntarily medicating him. The District Court refused to grant the injunction. He appealed to the Ninth Circuit Court of Appeals.

In order to obtain a preliminary injunction one must show that he/she is likely to succeed on the merits, that the failure to grant the preliminary examination could result in irreparable harm and that the balance of the equities support the granting of the preliminary injunction. Since Loughner has not been convicted he is presumed innocent and has greater civil rights than one who has been convicted. Forced medication may cause significant and irreversible side affects including death. While the government has strong reasons for wanting to return Loughner to competency the equities favor Loughner. The length of the injunction will be short and he has a strong interest in controlling what drugs are injected into his body. As a result the Ninth Circuit reversed the district court and granted the temporary injunction. It set the case for an expedited hearing on August 29 to determine the issue of forced medication on the merits.

On July 7 Humberto Leal Garcia, a Mexican citizen was executed by the State of Texas for the rape, kidnapping, and murder of a 16 year old girl in 1994. Earlier on the seventh the Supreme Court refused to grant a temporary stay of the execution in order to grant Congress time to pass legislation implementing the Vienna Convention on Consular Relations. The International Court in Case Concerning Avena and other Mexican Nationals found the United States to be in violation of the Convention by failing to provide notice to arrestees that they are entitled to get assistance from the Mexican Consulate and in failing to provide foreign nationals with hearings to determine whether or not they were prejudiced by the lack of notice.

President George W. Bush attempted to implement the Convention through a presidential memorandum. But the Supreme Court in Medellín v. Texas ruled that only Congress can pass implementing legislation. A bill is currently pending before Congress to implement the Convention and provide for a hearing for foreign nationals not notified that they have a right to assistance from their consulate.

Both Leal and the Federal government filed briefs requesting the stay. But the majority per curiam opinion denied to grant the stay. It accepted the arguments of the State of Texas that Medellin is the law of the land and that it precluded any stay. The minority brief written by Justice Bryer pointed to the deference normally given to the president in foreign policy matters who through the brief of the Solicitor General argued that an execution in violation of the Vienna Convention would cause significant damage to our foreign relations. Breyer pointed out that by staying the execution until the Supreme Court begins its 2011-2012 session in September, the court would give Congress time to enact implementing legislation. But the majority, citing Medellin, denied the stay and Leal was executed.

The jury in the Casey Anthony trial unanimously found her not guilty of the murder of her daughter, Caylee. What does that mean. It does not mean that she is innocent. It merely means that none of the jurors felt that the prosecution had proved her guilt beyond a reasonable doubt. In fact every member of the jury could have believed that she killed her daughter. Alternatively they could have felt that they did not know who killed Caylee. It’s possible that some believed that Casey killed Caylee, but not by a beyond a reasonable doubt standard and others do not know who killed Caylee. Its obvious that the jurors don’t think very highly of Casey. After all they found her guilty of four counts of lying to a police officer. So its obvious that they don’t believe much of what she said. Luckily she did not testify at trial. And probably they did not believe much of what her lawyers said. They did not have much in the way of facts to back up the drowning story or the allegation that the postal employee moved the body.

But the jury did what it was supposed to do. It held the prosecutor to a beyond a reasonable doubt standard, And after eleven hours of deliberation it found that there was insufficient evidence to find Casey Anthony guilty beyond a reasonable doubt of the murder of her daughter.

No doubt many will be upset with the jury’s decision. Many (including this author) expected a different result. They ignored the discussion of chloroform which was a red herring with no relevance to the case. They looked at the evidence and decided that they could not find Anthony guilty beyond a reasonable doubt.

There is a long tradition in common law jurisdictions. We do not want to punish a person unless the the government can show beyond a reasonable doubt that the defendant is guilty. This is particularly true, in cases like that of Casey Anthony, when the defendant is facing the death penalty. Therefore it is particularly difficult to get a conviction when the only evidence is circumstantial and when the prosecution is unable to show either the method used to kill the victim or even the time when the victim died. Therefore the jury made the right decision.

December 7, 1941 may have been a day that lived infamy when Japan bombed Pearl Harbor but for Randy Joseph Moore December 7,1995 is the day. For on that day Moore, together with two friends, attacked Kenneth Rogers. After they bloodied him they tied him with duct tape and threw him into the trunk of a car. Then they drove him into the countryside and Moore shot and killed him.

That was just the first of his mistakes. He then told two people about the incident and gave a confession to the police. ¹

Prior to trial, at his attorney’s urging, he entered into a plea bargain. He plead to felony murder for the minimum sentence of 300 months.

He then filed a writ of habeas corpus alleging incompetence of counsel for failure to file a motion suppressing the confession prior to entering the plea. The state courts in Oregon denied the writ but the Ninth Circuit granted it. The United States Supreme Court, yesterday, reversed the Ninth Circuit’s granting of the writ and reinstated the conviction. ²

The Ninth Circuit ruled that trial counsel acted below the standard expected of counsel when he/she did not run the motion before urging Moore to accept the plea. But the Supreme Court pointed out that the key case of Strickland v. Washington required that prior to reversing a conviction for incompetence of counsel, trial counsel must not only be incompetent but the defendant must be prejudiced. In this case the Supreme Court said that Moore was not prejudiced. Moore admitted committing the murder to two people who could testify. Even if the confession to the police was excluded at trial there would still be the testimony of these two people.

Trial counsel was reasonable in urging Moore to take the plea. His lawyer was afraid that if the plea was not accepted the prosecutor may find additional evidence and Moore may end up facing life in prison or the death penalty. Any time a defendant pleads guilty before trial he/she as well as the district attorney is taking a risk. No one knows whether more evidence will be found or whether the government’s case would fold. By taking a plea bargain a defendant gets a sure thing and the district attorney gets a conviction, though perhaps for less time than he/she might get after trial. Under these conditions counsel’s advice was reasonable and on a writ of habeas corpus reasonableness is all that is necessary. The state court’s ruling was not an “unreasonable application of clearly established Federal law.” Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a Federal Court cannot reverse a state court’s denial of habeas corpus unless the state court’s decision was an “unreasonable application of clearly established Federal law.” Since that could not be said in this case the Supreme Court upheld the decision of the Oregon Supreme Court denying the writ.

Charles Bizilj took his two sons, Christopher, age 8, and Colin, age 11 to the 2008 Machine Gun Shoot and Firearms Expo in Westfield, Massachusetts. Those attending the Machine Gun Shoot and Firearms Expo were allowed to shoot machine guns at pumpkin targets. All ages were allowed to participate, although Massachusetts law prohibited those under 18 from using machine guns. Dr. Bizilj allowed Christopher to shoot a 9-millimeter Micro Uzi submachine gun, thinking that a small gun would be easier for the eight year old to shoot. The first two times Christoper attempted to shoot the gun it jammed. The fifteen year old who was supervising the shoot then checked the gun and reloaded it. Christopher put his finger on the trigger and then attempted to balance the gun on his shoulder. But as he was balancing the gun it went off, killing him.

Former Pelham Police Chief Edward B. Fleury who sponsored the event and two other men who provided the weapons are charged with involuntary manslaughter. Hampden District Attorney William M. Bennett did not charge Dr. Bizilj although at a minimum it seems that he may be guilty of child endangerment. ¹

During the shoot Dr. Bizilj videotaped the incident, dropping the camera when his son was shot. The trial was scheduled for last week but it was continued when Fleury got sick. In pretrial motions the defense requested that the prosecution be prevented from playing the video before the jury. The prosecution argued that the video was necessary “to show to the jury ‘how dangerous, how lethal’ the machine gun was in the hands of an 8-year-old boy.” But the defense attorney, Rosemary Curran Scapicchio, argued that there was no question that Christopher was shot or that he died and therefore it is not relevant. The question before the judge was whether the video’s probative value outweighed by it’s predjudicial effect upon the jury. The video is a strong tool and may take the emphasis off whether or not Fleury ² is quilty of manslaughter and place it on the horrendous nature of the death. To prove manslaughter District Attorney William M. Bennett will have to show “an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless.” The Court ruled that in this case the probative value of the tape which will show the effects of allowing the child to shoot the gun and the lack of control over the child’s use of the gun makes it sufficiently probative that the evidence ought to come in. But at the same time the court withheld deciding whether the auditory part of the tape after the camera was dropped in which the father is heard telling his son that he loves him and praying will be used. The judge indicated that that portion of the tape may be excluded.

Bobby Joe Maxwell was arrested in 1979 and charged with killing ten men in Los Angeles. He was known in the press as the Skid Row Stabber. He was tried and found guilty of killing two of the men and was sentenced to life without parole. On the other counts he was either found not guilty or the jury hung.

Monday, the Ninth Circuit Court of Appeals granted his writ of habeas corpus ordering that he either be released or given a new trial. The primary witness against him at his trial was Sidney Storch one of the most infamous jailhouse informants of the Los Angeles informant scandal of the 1980′s. Storch, a convicted forger, had a signature modus operandi. He arranged to be placed in the same cell with a defendant accuse of an infamous crime. Then he would read articles about his cellmate in the media. He would then call the DA’s office and offer to testify about his cellmate based upon what he read in the newspaper, claiming that the cellmate admitted the truth of what was in the newspaper. Shortly after Maxwell’s trial Storch was charged with perjury for giving false testimony in another case in which he acted as an informant but he died before he was tried on the perjury charges.

Due Process rights are violated when one is convicted based upon false testimony. Of course there is no way to prove what Maxwell told or did not tell Storch. But there is plenty of evidence that Storch lied at trial. He lied about the number of times he had informed on other people. He lied about his criminal history. He lied about the decreased sentence he received in exchange for testifying against Maxwell. Three police officers testified that they refused to use him as an informant in other cases because he was untrustworthy. The Ninth Circuit found that Storch lied about material evidence at Maxwell’s trial based upon his lies under oath and his pattern of lying in other trials.

But it is not enough in a Federal writ of habeas corpus to prove that an informant lied. A writ of habeas corpus can only be granted under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) if (1) the conviction “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) if the court made “an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” The standard is tough. Not impossible, but rarely met. As the Ninth Circuit stated:

Where a petitioner challenges the state court’s findings based entirely on the state record, ‘we must be particularly deferential to our state-court colleagues,” and defer to their factual findings unless we are “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.’

Here the Ninth Circuit found that the trial court, which held an evidentiary hearing on the matter, in a state writ of habeas corpus, some years ago made an unreasonable determination of the facts when it found that Storch’s testimony was credible. As a result the writ of habeas corpus was granted. The Superior Court was told to either grant Maxwell a new trial within a reasonable period of time or release him after 31 years in custody.

Today the jury will start deliberating in Scranton, Pennsylvania in the trial of Brandon Piekarsky and Derrick Donchak who are charged with a hate crime and a civil rights violation for the murder of Luis Ramirez. It is alleged that Piekarsky, Donchak, and a group of their high school buddies killed Ramirez because they were upset with the increase in the Hispanic population in their hometown of Shenandoah.

According to the Associated Press article the teenagers were tried and found not guilty on serious state charges and are now being charged in Federal Court. A half dozen inebriated members of their high school football team, according to the prosecutor, acted as a team in attacking the twenty-five year old Hispanic man after they attended a block party.

At one point during the fight Ramirez walked away. Then one of the teenagers yelled racial slurs at him and he charged towards them.

Certainly the death of Ramirez is a tragedy, but a number of a number of basic American traditions are brought into question by the trial. While no strict double jeopardy question arises since the Federal charges are different from the state charges for which the men were found not guilty. But do we really want to give the government two bites of the apple. They already put the defendants through one serious trial and now they are facing life in prison in a second trial for the same act.

Ramirez left the fight and then came back to renew it. I do not know about Pennsylvania law but under California law and the law of many states Piekarsky and Donchak had no duty to retreat. They would have had a right to defend themselves. As the Supreme Court recently pointed out in McDonald the right to defend oneself, even with a gun and there were no guns involved in this case, is fundamental to the American way of life.

A third issue is that the four football players are being treated as a team. Two of them have plead and the other two are on trial but the prosecutor calls them a team. Traditionally we insist upon individual responsibility. We do not blame everyone walking home in the group because one of the group, Brian Scully yelled racial slurs at Ramirez. Nor do we hold it against the entire group that Collin Walsh knocked Ramirez out or that Piekarsky kicked him in the head while he was unconscious.

Regardless of what you think about these American traditions the law is not the best way to change them. Regardless of what the jury does, the right of self defense in strongly ingrained in our society. Likewise nothing that happens in Scranton is going to change American individuality or view about subjecting defendants to multiple trials for the same behavior. These values are taught to us as children and trials are not going to change them.

On the other hand it does not mean that the men should go free. Nothing in our traditions endorses murder and murder should be punished, unless as I suspect the jury in the state case found that the men were acting in self defense.

On April 9, 2009 at least three people invaded the Beulah, Florida residence of Melanie and Byrd Billings, murdering them and stealing a safe. Ten of their children, eight of whom were special needs children the couple had adopted were home at the time but none of them were injured.

Escambia County authorities charged eight people in the case. Leonard Patrick Gonzalez Jr., Leonard Gonzalez, Sr., Donnie Ray Stallworth, Wayne Thomas Coldiron, Frederick Lee Thornton Jr., Gary Lamont Sumner, and Rakeem Florence. were charged with murder. Florence, a juvenile was charged as an adult and plead guilty to second degree murder. The eighth person, wealthy realtor, Pamela Long Wiggins was charged with being an accessory to the the crime. Her car was used as the get away car and a safe ¹stolen from the property was buried in her back yard.

Friday, Wiggins, her husband Hugh, and a friend, Eddie Denson were indicted in Mississippi as accessories after the fact. The Wigginses brought a number of guns ² used in the invasion of the Billings residence to Denson who lived in Mississippi to keep after the murder.

Hugh Wiggins had been given immunity in Florida in exchange for giving a statement. But the immunity did not prevent him from being indicted in Mississippi. Accepting a grant of immunity has a number of problems, not the least of which is that immunity is limited to the jurisdiction that grants it. In other words immunity granted in one states does not prevent an indictment in another state. Likewise immunity granted in Federal Court does not prevent an indictment in state court and immunity granted in state court does not prevent an indictment in Federal Court.

One may question the judgment of Hugh Wiggins’ attorney for letting him get immunity in Florida when he is facing charges in Mississippi but the decision may have been a wise choice. In Mississippi he is only facing five years while his wife ³ is not only facing five years in Mississippi but she is also facing thirty years in Florida.

Only ten days after a jury found former BART police officer Johannes Mehserle guilty of involuntary manslaughter in the killing of Oscar Grant on New Years Day 2009 BART and Oakland police officers killed Fred Collins who was wielding a knife and threatening the officers near the same Fruitvale BART station where Grant was killed.

While the official story from the BART and Oakland Police Departments is that five police officers, two from BART and three, from Oakland killed Collins after he was reported to have two knives near the station, a witness says there may have been as many as ten officer shooting multiple bullets into Collins.

Unlike the shooting of Oscar Grant there were no video cameras at the scene and the killing has received relatively little press.

Following a 911 call the BART police were the first on the scene. They chased Collins and unsuccessfully attempted to taser him on at least two occasions. When they were unsuccessful and when Collins turned towards them with the knives they shot him multiple times and killed him.

What I don’t get is how five or more police officers armed with guns and tasers cannot stop one man, carrying only two knives, without killing him. Even if the man was attempting to commit suicide by cop as one witness reported there were enough police available to surround him and force him to drop the knives. Police, if sufficiently trained (and the BART pollce are notorious for not being well trained), can talk a man into surrendering his weapons. Certainly there was no need for multiple shots. In the worst case, if a man is threatening me with a knife, and I am genuinely afraid that he will kill me, I move myself out of arm’s distance if I am that close to him and either talk him into surrendering the knives or I shoot him in the leg. If he is shot in the leg he will fall over and be unable to stab me. There is no need for multiple fatal shots.

Johannes Mehserle was convicted of the involuntary manslaughter of unarmed Oscar Grant III who was lying face down on the platform floor at the Fruitdale BART station on New Years 2009 by a Los Angeles jury. The trial was moved to Los Angeles due to fear that Mehserle, who at the time of the shooting was a BART police officer would not get a fair trial in Oakland where he shot and killed Grant after being called to the BART Station to deal with unruly passengers. The killing was recorded by BART patrons on cell phones and widely spread over the internet.

Prior to the beginning of the jury deliberation the judge dismissed the first degree murder charge.

But the judge did instruct the jury on second degree murder, involuntary manslaughter and voluntary manslaughter. Unlike first degree murder, second degree murder does not require premeditation. All of the evidence indicated that on the spur of the moment in an effort to detain Grant Mehserle shot him. There was no evidence of premeditation. Both first degree murder and second degree murder require an intent to kill. There was no question that Mehserle killed Grant using his gun. If the district attorney proved beyond a reasonable doubt that Mehserle intended to shoot Grant with his gun the intent to kill would be shown.

But Mehserle’s attorney, Michael Rains argued that he accidentally pulled his gun and shot it. His intent was to use his Taser. If this was the case and the jury apparently believed it or at least did not believe beyond a reasonable doubt that Mehserle intended to kill Grant, he was guilty of manslaughter, not murder.

California law defines manslaughter as:

the unlawful killing of a human being without malice. It is . . . :
(a) Voluntary–upon a sudden quarrel or heat of passion.
(b) Involuntary–in the commission of an unlawful act, not amounting to felony; or
in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. . . .

Thus it is likely that the jury found that Grant was killed “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” It is pretty clear that the jury found that Mehserle acted “without caution and circumspection by pulling his gun out of his holster and shooting grant instead of pulling this Taser out and shooting grant with the Taser.

Assuming that Mehserle is not granted probation, the penalty for involuntary manslaughter is two, three or four years. The jury also found that Mehserle used a gun in the course of killing Grant. For this he can get an additional three, four or 10 years. Thus at sentencing on August 6th Meherse is facing up to 14 years in prison.